AMERICAN DISTILLING CO v. CITY COUNCIL OF CITY OF SAUSALITO

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District Court of Appeal, First District, Division 1, California.

AMERICAN DISTILLING CO. v. CITY COUNCIL OF CITY OF SAUSALITO et al.

No. 13941.

Decided: January 25, 1949

John B. Ehlen, of San Francisco, for appellants. Norman A. Eisner and Samuel W. Wicklow, both of San Francisco, for respondent.

This case raises two main questions: (1) the method of determining ownership of land in protests in annexation proceedings under “Annexation of Uninhabited Territory Act of 1939;” (2) the applicability of mandamus to the circumstances here.

Proceedings in the Council.

The city of Sausalito is a city of the sixth class. Appellants, its city council, pursuant to Act 5162, General Laws, Stats.1939, Chap. 297, p. 1567, as amended, on October 21, 1947, adopted a resolution of intention to annex certain contiguous uninhabited territory. This resolution set November 18, 1947, for the hearing of protests against the annexation. Section 6 of said act prescribes: “At any time not later than the hour set for hearing objections to the proposed annexation,” any owner of property within the territory to be annexed may file protest, and sets forth the matter to be included in such protest. “At the time set for hearing protests the legislative body of such municipal corporation shall proceed to hear and pass upon all protests so made and if it be found that protest is made by the owner or owners of one-half of the value of the territory proposed to be annexed according to the last equalized assessment roll, no further proceedings shall be taken in connection with the proposed annexation.” (Emphasis added.)

Prior to the time set for hearing, respondent filed its written protest in which it stated the facts hereafter set forth (there is no controversy as to their truth): 1. The last equalized assessment roll was that for 1947. 2. On that roll, respondent was the only owner of property assessed at any amount. Its real property, including land and improvements, was assessed thereon at $137,585. 3. The part of the territory sought to be annexed which was not owned by respondent was owned by the United States of America and was carried on the roll at no value. It had not been valued on any assessment roll since 1939.

At the council meeting of November 18th, respondent presented its protest, and since respondent was the only owner of property carried on the 1947 roll, it demanded that, pursuant to said section 6, the annexation proceedings be forthwith terminated. The council refused so to do, and continued the hearing to December 2d, “for the purpose of further considering the protests filed herein against the proposed annexation, for the purpose of procuring evidence regarding the points raised in the written protest now offered and filed and for the purpose of considering the validity of said protests and of then acting upon said Resolution.”

At the meeting of December 2d, there was read a protest received that day from the War Assets Administration, on behalf of the United States of America as owner of property within the proposed territory. On the ground that the protest had not been filed as required by section 6, “not later than the hour set” in the Resolution of Intention, this protest was overruled. The council again refused to terminate the proceedings, and the hearing was continued to January 6, 1948.

The War Assets Administration then filed a more specific protest, which was considered at the meeting of January 6th, and denied, again on the ground that it was filed too late. The council thereafter considered respondent's protest, and concluded that, based on the value as shown on the 1939 assessment roll and on recent estimates, the value of the property of the United States, as compared with the value of respondent's land, disregarding the value of the improvements thereon, exceeded the value of respondent's property, and that respondent was not the owner of half of the value of the territory proposed to be annexed. The council thereupon overruled respondent's protest and one of the councilmen introduced an ordinance of annexation. The meeting then adjourned. At the meeting of March 16th, the council passed the ordinance.

Court Proceedings.

On January 19th respondent filed in the superior court a petition for a writ of mandate to compel the council to terminate proceedings in connection with the proposed annexation. An alternative writ of mandate was thereupon issued ordering the council to terminate said proceedings or show cause on January 26th, why it had not done so. On this date the appellants filed a general demurrer to the petition, and on February 2d the court allowed the prayer of the petition to be amended, and overruled the demurrer, giving appellants time to answer. A motion to quash the alternative writ was denied on February 13th, at which time the court amended the writ to conform to the amended petition, leaving the original return date January 26th, which, of course, was a past date. However, appellants filed an answer to the petition, and the case was set for trial and tried on March 22nd.

At the trial, as the council had passed the ordinance of annexation on March 16th, appellants moved to dismiss the petition on the ground that all questions were now moot. The court denied this motion and permitted respondent to file a supplemental petition praying that the court declare the ordinance null and void and order the council to rescind it. At the conclusion of the trial, the court declared the ordinance null and void, ordered the council to rescind it, and issued the writ of mandate applied for. The council appeals.

Council Acted Improperly.

There is no merit to appellants' contention that the method of determining ownership for protest purposes set forth in section 6 is not exclusive, nor to the contention that the government owned property not appearing on the 1947 assessment roll may be considered in determining whether owners of one-half the value of the territory have protested. The section is clear. It states that no further proceedings can be had, if it be found that the protest is made by the owners of one-half of the value of the territory proposed to be annexed, and then goes on to say how ownership and value are to be determined, namely, “according to the last equalized assessment roll.” The mode is the measure of the council's power. The fact that this method eliminates from consideration by the council in annexation proceedings under this act, publicly owned property which does not appear on the assessment roll and the advisability of eliminating it, are matters for the Legislature and not for this court. Appellants rely principally on Shepherd v. Board of Supervisors, 137 Cal.App. 421, 30 P.2d 578, decided in 1934. In that case the Board of Supervisors of San Joaquin County, pursuant to the provisions of the Statutes of 1899, p. 37, and amendments thereto, 2 Deering's General Laws of 1931, p. 2590, Act 5163, had initiated proceedings to annex to the city of Stockton certain uninhabited territory, two-thirds of which proposed territory was owned by the city of Stockton. Nearly every owner of the other one-third of the territory filed protests. The statute provided that if the owners of more than one-half of the land sought to be annexed filed protests against annexation, no further proceedings could be had for one year. The board found that, in view of the city of Stockton's ownership of two-thirds of the lands within the territory, the protests were by less than one-half of the owners, and proceeded with the annexation. On appeal from a decree of the superior court cancelling the order of the board, the court held that the board “properly considered the entire tract of land sought to be annexed, including both the privately controlled and city owned property,” as “the statute makes no distinction between public or private owners of land.” 137 Cal.App. at pages 430, 431, 30 P.2d at page 583.

It is obvious that there is a considerable difference between the statute in that case, which provided for protests by all land owners, regardless of the value of their properties, and the statute in the case at bar, which considers not alone ownership, but the value of the property owned as set forth on the last assessment roll. It is significant, too, that in 1937, after the decision in the Shepherd case, the Legislature repealed the statute there considered, and in 1939 enacted the one in question here, setting up an entirely different standard for protests.

Appellants contend that the construction of the annexation statute which we have given, makes the statute unconstitutional in that thereby, in annexation proceedings, veterans and others holding exempt property are not considered. Actually they are considered, as section 6 provides that “any owner of property” may protest, but only the owners of assessed property are considered in the question of the amount of protests necessary to terminate the proceedings. Appellants cite no authorities to support their contention. There is no reason advanced why the Legislature may not provide that while the attitude of owners of tax exempt property towards annexation may be considered by the council, only the owners of assessed property, who, after all, are the ones who will have to assume the burden of taxes in the new incorporated area, are to have the right to stop the annexation. It is interesting to note that in the instant case, although the government's protest was too late technically, the annexation was put through against the will of the owners of all the property in the annexed territory, both assessed and unassessed. The trial court was correct in its ruling that evidence as to appraisements of the government's property made in 1947 and not appearing on the assessment roll should not have been considered by the council, and was not admissible in the court proceeding.

Does Mandamus Apply?

Appellants contend that mandamus will not lie under the circumstances of this case, because (1) the courts will not interfere with legislative action; (2) the petition is defective in failing to allege damages; (3) respondent has a plain, speedy and adequate remedy; (4) the petition was premature; (5) the court has no power to order the council to revoke its ordinance.

1. Court Will Interfere Where Council Is Acting Beyond Its Powers.

At the time the petition was filed, the ordinance of annexation had not been passed, but merely introduced. However, the council had erroneously denied respondent's petition. It was the duty of the council to find that the owner of over one-half of the territory had protested, and thereupon, under the law, the council should have immediately terminated the proceedings. The council, in failing to so find and to terminate, was acting beyond its power. While the courts are loathe to interfere with the legislative process, they must interfere when the legislative body is acting without power or refuses to obey the plain mandate of the law. The council had no discretion in the matter. There was no conflict in the evidence before it, on the question of ownership. Appellants quote from Durrett Hardware & Furniture Co. v. Monroe, 1942, 199 La. 329, 5 So.2d 911, 915, annotated in 140 A.L.R. 433: “The judiciary should always be reluctant to interfere with a legislative body while it is deliberating upon matters commonly within its field of action and, unless it clearly appears that it is attempting to assume power which does not reside in it and that the action sought to be prevented will result in immediate and irreparable injury to the complainant, the court should not entertain the proceeding.” (Emphasis added.)

The rule is stated in IV Dillon, Municipal Corporations, 5th ed., pp. 2648, 2657, thus: “A writ of mandamus will, where it is an appropriate remedy, be granted against municipal corporations and their officers whenever they refuse or unreasonably neglect to perform any duty clearly enjoined upon them by charter, or statute, or law, and there is no ordinary or specific legal remedy adequate to enforce the right of the public, or the particular legal right of the relator. *

“The general rule is this: If the inferior tribunal, corporate body, or public agent or officer has a discretion, and acts and exercises it, this discretion cannot be controlled by mandamus. But if the inferior tribunal, body, officers, or agents refuse to act in cases where the law requires them to act, and the party has no other legal remedy, and where, in justice, there ought to be one, a mandamus will lie to set them in motion, to compel action; and, in proper cases, the court will settle the legal principles which should govern, but without controlling the discretion of the subordinate jurisdiction, body, or officer.”

Under the Code of Civil Procedure, sec. 1085, mandate “may be issued by any court, except a municipal, justice's or police court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station *.”

In the case at bar, the duty placed on appellants was to take no further proceedings in connection with the proposed annexation. The fact that this is, in a sense, a duty not to act, rather than a duty to take affirmative action, does not affect the applicability of the above provisions. There is still a duty involved, and there should be a procedure for enforcing it.

In Glide v. Superior Court, 147 Cal. 21, 81 P. 225, the Supreme Court granted a writ of prohibition against an injunction directed to a county board of supervisors, on the ground that the board had power to act, but stated, 147 Cal. at page 25, 81 P. at page 226: “Courts of equity do interfere, and are justified in their interference, in cases where municipal corporations or inferior boards or tribunals are acting, or proposing to act, in excess of their jurisdiction, and without authority.” This language is used even though the court referred to section 3423 of the Civil Code, which seems on its face to prohibit any such injunction.

“An exception to the general rule that a court of equity will not enjoin the passage of an ordinance or resolution has been recognized in cases where the proposed action of the municipal legislative body violates a law which expressly or in effect prohibits the adoption of such an ordinance or resolution, as distinguished from instances where the ordinance or resolution is merely ultra vires because of a failure to confer power upon the municipality.” 140 A.L.R. 446.

In Inglin v. Hoppin, 156 Cal. 483, 105 P. 582, the board of supervisors had refused the petition of landowners to set aside their lands as a reclamation district. Section 3449 of the Political Code then required that “if the board of supervisors find on the hearing of the petition that its statements are correct, they must make an order approving the same.” 156 Cal. at page 484, 105 P. 582. In upholding the issuance by the trial court of a writ of mandate to compel the supervisors to set aside the lands into an independent district, the court pointed out that if the question of fact, namely, whether the statements in the petition were correct, was doubtful or disputed, the court would not interfere, still where, as here, the evidence was uncontradicted, it became “the clear duty of the superior court to issue its mandate to the board of supervisors to accord to the petitioners the right which the statute clearly gives.” 156 Cal. at page 491, 105 P. at page 585.

Even though the duty of the council here to act was, in a sense, a negative one, mandamus will lie to compel the council to perform that duty. Even accepting appellants' contention that the court's action would be an interference with the legislative acts of the council, the cases support the right of the courts to do so, where, as here, the council was exceeding its power.

2. Failure to Allege Damages (Beneficial Interest).

Appellants argue that the petition failed to allege present or prospective damages to respondent from the action of the council, but there is no requirement of such an allegation; the statute simply requires a showing of beneficial interest. Code Civ.Proc. sec. 1086. A similar contention was made in Santa Rosa Lighting Co. v. Woodward, 119 Cal. 30, 50 P. 1025, where the petitioner sought mandate to compel the city council to advertise for bids for lighting the city streets. In holding that mandate would lie, the court said 119 Cal. at page 34, 50 P. at page 1031: “Besides, as a taxpayer, plaintiff was beneficially interested; and I do not think it essential upon an application in a proper case, designed to compel compliance with statute law, that the party must show actual pecuniary damage. It should be presumed that where the law enjoins a duty upon a municipal body, and specifically points out the mode of its performance, a violation of that duty and a disregard of the mode of its performance, will work injury.” See also Hollman v. Warren, 32 Cal.2d 351, 196 P.2d 562. Moreover, in our case, damage to respondent from an illegal annexation is obvious. Its property would be subject to city taxation, and city regulation.

The cases cited by appellants on this point do not support their contention. In Ault v. Council of City of San Rafael, 17 Cal.2d 415, 110 P.2d 379, a taxpayer sought a writ of mandate to compel the city council to call a special election on a proposed amendment to the city charter. The council had ordered the proposed amendment placed on the ballot at the general election to be held “only twelve days after the earliest possible special election date.” 17 Cal.2d at page 417, 110 P.2d at page 380. The court denied the writ on the ground that “Petitioner has completely failed to show how he, as a taxpayer, would be injured in any way by the short delay between the earliest date of a special election and the general election of April 14th.” 17 Cal.2d at page 417, 110 P.2d at page 380.

In Friedland v. Superior Court, 67 Cal.App.2d 619, 155 P.2d 90, mandamus to compel the superior court to try an action against the State Board of Equalization in a certain way, namely, as a trial de novo, was denied on the grounds that the answer of the superior court showed that it planned to try the case, in effect, as a trial de novo, and that if any error should be committed by that court, the petitioner had a plain, speedy and adequate remedy at law, viz., an appeal from the action of the superior court.

In Thomasson v. Jones, 68 Cal.App.2d 640, 157 P.2d 655, the court denied a petition for writ of mandate to order the county surveyor and recorder to accept for recordation a record of a survey of a tract of land, on the ground that the petitioner, who had refused to join the owner of the land as a party to the proceedings, was merely an employee of such owner, and hence not the real party in interest.

3. Was There a Plain, Speedy and Adequate Remedy at Law?

Section 1086 of the Code of Civil Procedure provides: “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.”

The cases have long held that mandate cannot be granted unless the above mentioned situation exists: “* the writ of mandamus will issue only where a legal duty is established and no other sufficient means exist for its enforcement.” Sherman v. Quinn, 31 Cal.2d 661, 664, 192 P.2d 17, 19. Appellants contend that if respondent waited until the ordinance was adopted, it could have tested its legality by quo warranto, certiorari, or by a suit to enjoin its enforcement, citing Crowl v. Board of Trustees, 109 Cal.App. 214, 292 P. 985, and People v. City of Los Angeles, 93 Cal.App. 532, 269 P. 934. Hence, they argue, mandamus would not lie. Neither of these cases considered the question whether mandate would be denied because of the existence of these other remedies.

Sherman v. Quinn, supra, at first blush seems to support appellants' position. There a husband and wife sought a writ of mandate to compel the assessor of Los Angeles County to assess to them real property being purchased by them under a contract of conditional sale in order that the husband might claim his tax exemption as a veteran. In denying the writ the court, two justices dissenting, held that the petitioners had a remedy at law, namely, “an adequate procedure is provided by statute whereby taxes erroneously levied and collected may be refunded, together with interest thereon, upon a claim therefor.” 31 Cal.2d at page 665, 192 P.2d at page 19. An examination of the case, however, shows that the main ground of the decision was that the failure of the assessor to assess the real property to the vendees, rather than to the vendor, did not necessarily mean that the assessor would deny (particularly in view of the court's decision that he should not deny) the veteran's right to tax exemption. “* assessment to the veteran is not a prerequisite to the application of the constitutional provision. It is the property of the veteran to the specified amount which is exempted from taxation, and the form of the assessment is of no consequence.” 31 Cal.2d at page 664, 192 P.2d at page 19. A further ground of the decision was that “ ‘The idea that every tax-payer is entitled to the delays of litigation is unreason’ ” 31 Cal.2d at page 665, 192 P.2d at page 19; hence, it is better to follow the “form of procedure, widely used in the tax field,” provided by the statute. Vista Irr. Dist. v. Board of Supervisors, 32 Cal.2d 477, 196 P.2d 926, also dealing with taxation, followed this decision. The correction of an error (if the assessor should make it, which in the Sherman case the court doubted would happen, in view of its decision) by obtaining a return of the taxes paid, “together with interest thereon,” by merely filing a claim therefor, cannot be compared with the complicated, expensive procedure of quo warranto, certiorari, or injunction. In the dissenting opinion in Sherman v. Quinn, 31 Cal.2d at page 667, 192 P. at page 20, the situation is well expressed: “As emphasized in Dufton v. Daniels 1923, 190 Cal. 577, 581, 582, 213 P. 949, 951, ‘ “It has been held in this state that, to supersede the remedy by mandamus, the party must not only have a specific adequate legal remedy, but one competent to afford relief upon the very subject-matter of his application, and one which is equally convenient, beneficial, and effective as the proceeding by mandamus.” [[[Citations.]’ In the Dufton case petitioner sought a writ of mandate to compel the state board of control to audit and allow petitioner's claim for his necessary traveling expenses as a state agent in returning to the state of California a fugitive from justice, under the provisions of section 1557 of the Penal Code. Although a statutory remedy was provided this court granted the writ, with the holding that ‘The remedy afforded by the statutes above cited is manifestly not equally convenient, because the action therein provided for must be transferred to Sacremento County upon demand of the Attorney General, regardless of the residence of the plaintiff, and it is not equally beneficial or effective, because the plaintiff therein, though successful, cannot recover his costs *.’ (Italics added.)” To the same effect, Raisch v. Board of Education, 81 Cal. 542, 22 P. 890; Robertson v. Board of Library Trustees, 136 Cal. 403, 69 P. 88.

While the allegation that the “petitioner has no plain speedy or adequate remedy at law” “is but a mere conclusion of the pleader,” Oliver v. Superior Court, 67 Cal.App. 358, 227 P. 647, it is apparent from the face of the petition that the petitioner here did not have any such remedy available to it. The remedies open to it, other than mandamus, were in the future, and hence neither speedy nor adequate.

In Sheehan v. Board of Police Commrs., 47 Cal.App. 29, 190 P. 51, in holding that mandamus would lie in a proceeding by a policeman to compel the board to reinstate him on the disabled pension rolls, the court said: “That he may have had also the right to apply for a writ of review to test in that form of limited inquiry the jurisdiction of the board to make its said several orders cannot be held to have deprived him of his larger and more fully effective remedy by way of a writ of mandate.” 47 Cal.App. at page 36, 190 P. at page 54.

In People v. City of Los Angeles, supra, 93 Cal.App. 532, 535, 269 P. at page 936, appears the language: “the validity of the proceedings for the annexation of territory to municipalities can only be determined in a quo warranto action *.” It was a quo warranto proceeding and there was no discussion of whether mandate would lie. The decision was based on Coe v. City of Los Angeles, 42 Cal.App. 479, 183 P. 822, where it was held that a taxpayer within the former city of Sawtelle could not attack in an injunction proceeding the validity of the annexation proceedings by which that city was annexed to the city of Los Angeles, upon the grounds that by a favorable vote at the election held for the purpose of determining the annexation, the city of Los Angeles as to the annexed territory became a de facto corporation, and therefore was not subject to attack by private individuals, but only by the state. “The question involved is one of a purely political nature * and not affecting the private rights of plaintiff *” 42 Cal.App. at page 481, 183 P. at page 823. In spite of its broad language, this case cannot be considered authority for the proposition that where, as here, a city attempts in strict violation of the statute to annex uninhabited territory, the owner of over one-half of the value of that territory may not be granted relief from the void action of that city.

4. The Petition Was Not Premature.

Appellants contend that although the council had overruled respondent's protest, it could not complain until the ordinance of annexation had been passed; that not until then was there any final action of the board so far as respondent's property was concerned. Appellants call attention to the language of section 1094.5 of the Code of Civil Procedure, which indicates that mandamus will only issue “for the purpose of inquiring into the validity of any final administrative order.” (Emphasis added.) Whether this section is limited only to certain agencies or applies to city councils is not necessary to be determined at this time. So far as protests in annexation proceedings are concerned, the action of the council in acting on those protests is a final decision, and under the facts here, should have ended the proceeding. The contention that until the ordinance was adopted, respondent could have no remedy, is well answered in the case of Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147. The Federal Communications Commission had determined that the telephone company was engaged in interstate commerce and therefore subject to control by the commission. When the company sought appeal in the courts, the commission argued that there could be no appeal, since there was no order telling the company to do or refrain from doing something. This is the theory of non-reviewability of “negative orders,” which theory the federal courts had theretofore followed. The United States Supreme Court rejected this theory and held that so far as reviewability is concerned, there is no difference between “negative” and “affirmative” orders. As said in 48 Yale Law Journal, p. 1257, “the Supreme Court promulgated a clarified rule of judicial review which went far toward clearing away many of the superficial distinctions which long had fettered its application.”

The council purported to find that it had power to proceed with annexation. In a sense, this did not immediately affect respondent. However, it was the end of that stage of the process. The council was ready to proceed to its discretionary legislative function. To say that respondent's interests were in no way affected by the council's final action in that stage of the proceedings is erroneous. It had the right to test that action before the council, without power, proceeded any further. The fact that subsequent acts of the council might themselves be subject to attack did not bar respondent's right which then existed.

Judgment and Peremptory Writ Not Void.

Appellants contend that the judgment of the court, together with the peremptory writ issued thereon, ordering the council to rescind the ordinance, was beyond the power of the court. In Mitrus v. Nichols, 171 Misc. 869, 13 N.Y.S.2d 990, cited by appellants, the village board of trustees passed a resolution to annex certain territory. A new board subsequently repealed this resolution. Petitioner sought mandate to force the board to proceed with the annexation, and have the court declare the repealing resolution invalid, on the ground that the repeal had been passed under an erroneous idea that the first resolution was defective. There was no claim that the board lacked power to repeal. On these facts, mandate was refused because the board clearly had power, and the court could not inquire into its motives in exercising that power.

State v. Faurot, 44 Ohio App. 461, 185 N.E. 59, also cited by appellants, involved a situation where the voters had by election adopted a new city charter. The new charter provided for the election of new officers, and further provided that districting of the city into wards should not be changed until the new council was elected. Following adoption of the charter, the old council passed an ordinance dividing the city into wards. Petitioner sought a writ of mandate which would, among other things, order the council to repeal the districting ordinance. The court said that it lacked power to force the council to repeal the ordinance. However, the court found the ordinance to be null and void.

The judgment in the case at bar not only issued the writ ordering appellants to rescind the ordinance, but expressly decreed that “the ordinance * was and is hereby declared to be null and void and of no legal effect.” Thus, the last case is authority for the power of a court to adjudge an ordinance void because passed without authority, in a mandamus proceeding, although it holds that the court lacks power to order its repeal.

Volume 6 of McQuillin on Municipal Corporations (2d Ed.Rev.) cited by appellants, says at page 840: “Accordingly, it has been judicially held, the writ would not issue to compel the passage or repeal of an ordinance.” The only authority cited for this proposition is the case of State v. Faurot, just discussed above. The text statement is thus somewhat misleading, since in the case referred to the court did declare the ordinance void, which has about the same effect as ordering its repeal. The context of the text material, moreover, shows that the discussion was of procedures wherein the municipal corporation had power to act, and discretion in reaching a judgment.

None of the authorities cited by appellants, other than the Faurot case, which we see no reason for following, are inconsistent with granting mandamus to set aside legislation where the legislative body lacked power. They actually support this right.

Here, respondent had started court proceedings to test the validity of the council's actions, and while those proceedings were pending, the council, six days before the trial was to commence, passed the annexation ordinance. While the court had issued no restraining order, it is apparent that the council acted in the hope that having a fait accompli, respondent would have to start over again. Under such circumstances, the court's order requiring the council to set aside the ordinance was proper.

Amended Alternative Writ.

It is unnecessary to consider appellants' contention that the amended alternative writ was void because it required appellants to show cause on a date which was already passed when the writ was issued, for the reason that no attempt has been made to enforce that writ, and the case was later tried on its merits.

The judgment and decree appealed from is affirmed.

BRAY, Justice.

PETERS, P.J., and WARD, J., concur.